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Blind v. Colorblind: The Injustice of State
Felon Disenfranchisement Schemes
Lauren Nicole Carpenter
State policies which disenfranchise ex-felons, those who have served their complete sentences, have a long
history. While “civil death” was a common punishment for convicts in Europe prior to the colonization of
North America, ex-felon disenfranchisement statutes were adopted by several states, primarily in the South
after the Civil War. There is substantial evidence that these statutes were created to exclude racial minorities. These discriminatory effects can still be seen today. Racial minorities in the United States, primarily
African Americans, are incarcerated at a much higher rate than their white peers. Once convicted, these
persons are often subject to disenfranchisement. Because of the racial disparities in conviction and incarceration, minority communities are often left with a diminished voice in the electoral process. Under the
Voting Rights Act, as amended in 1982, any voting qualifications established by a state that result in disproportionate disadvantages for minorities are illegal. As a result, African American voters, who consistently vote for Democratic candidates 90% of the time, suffer from vote dilution due to felon disenfranchisement. Precedent suggests that courts analyzing such state statutes should consider a totality of circumstances, including the historical reasons for enactment and other harms suffered by the community. Because
of this, ex-felon disenfranchisement schemes are not only a bad policy, but also are incompatible with equal
voting rights as embodied in the 15th Amendment, and therefore invalid under law.
INTRODUCTION
S
ince ratification of the 15th Amendment, legislators
have worked to systematically keep African Americans
disenfranchised through a series of laws pertaining to
voter registration qualifications. Some were bold and clearly
intentioned, such as literacy tests and the grandfather clause,
which prevented anyone who did not descend from a registered voter from casting a ballot. Others were more subtle,
not unlike what we see today, disenfranchising felons and exfelons alike, creating a disproportionately disadvantaged
minority. Congress modified the original Voting Rights Act
(VRA) in 1982 to prohibit any voting qualifications which
result by diminished electoral participation. I argue that felon
disenfranchisement provisions are a violation of the Voting
Rights Act and are therefore not permissible by law.
For many Americans, voting is the pinnacle of political
activity. Social Contract theory, particularly formulated by
John Locke, remains the core of American political tradition,
including the right to elect officials believed to represent the
voters’ interests. However, throughout American history,
many groups, including blacks, Native Americans, poor uneducated whites, and women, have found themselves excluded
from this traditional political act. Some of the methods used
to disenfranchise these demographics were blatant – written
into the Constitution and the law books of every state. Over
time, as the responsibility began to move toward enfranchising all people in American society, the methods became more
subtle. Poll taxes kept those of the lowest economic status
from voting, grandfather clauses ensured that whites could
continue to vote while barring blacks, and the threat of violence as a deterrent prevented many.
The focus of this thesis is on the continued disenfranchisement of African Americans. This thesis seeks to show
how modern felon disenfranchisement laws are merely an
extension of previous methods used to prevent African
Americans from voting. I will argue that felon disenfranchisement practices have a racially disproportionate effect,
thus violating the Voting Rights Act as amended in 1982.
Specifically this paper addresses ex-felon disenfranchisement
– the continuing disenfranchisement of those having completed their sentences. For brevity’s sake, I will use the term
felon disenfranchisement, or FD. I do not, however, intend to
tackle the issue of voting rights for currently incarcerated
convicts. The issues of apportionment, residential status, and
what constitutes a domicile, among other things, are too complex to be dealt with here, and warrant their own thorough
investigation independent of ex-felon disenfranchisement.
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The early years in the United States saw little evidence
of equality of opportunity. Though the U.S. Constitution
allowed the states to devise their own voting qualifications,
most saw it the same way. Women, slaves and black free persons had very limited political rights, even non-property
holding free men could not cast a ballot. Over time, the
restrictions on white men who were not wealthy enough to
own property diminished. By around 1860 nearly all white
men were enfranchised, regardless of their financial portfolio
(Library of Congress, retrieved 8/24/2008).
The first 80 years of American history were less kind to
blacks. Without regard to their status of emancipation, nonwhites were largely excluded from participation in the electoral process. Even after the Civil War and the Emancipation
Proclamation that granted freedom to black slaves, the battle
continued over the issue of Negro suffrage. Though the 15th
amendment, ratified in 1870, guaranteed that the right to
vote could not be denied on the basis of color or previous condition of servitude, the creative ingenuity of racist political
leaders, especially those in the Southern states, ensured that
large numbers of African Americans would be kept from the
polls for what is now almost another 140 years.
In response to the perpetuation of policies that effectuated the disenfranchisement of hundreds of thousands of people
based on the color of their skin, Congress passed the Voting
Rights Act of 1965. This comprehensive legislation aimed at
political practices and institutions that prevented black
Americans from voting. This initial passage of the Voting
Rights Act (VRA) was intended to prevent racially biased
gerrymandering practices and voter qualification laws. If
plaintiffs could prove that a voter qualification was fashioned
with a biased motivation, the statute thus deemed illegal
would be invalid.
Proving racially motivated intent is a difficult and tenuous task. Recognizing this, Congress revised the VRA in
1982 to include a results test. Under this provision in Section
2 of the Act, plaintiffs need only prove that a voter qualification results in a racially disproportionate impact. Since that
time, only a handful of cases have made their way through the
court system contesting felon disenfranchisement statutes
under Section 2’s results test. There is no consensus on the
VRA’s application to felon disenfranchisement, nor whether
these statutes are permissible under federal law.
Wesley v. Collins was the first major case to be considered
under the results test legislation. In 1986, the 6th Circuit
Court of Appeals sided with the state of Tennessee writing
that, while a disproportionate number of blacks were disenfranchised under the felon/ex-felon statute, the disenfranchisement was not due to the state’s provision. Concurring
with Tennessee, the Court argued that some ethnicities are
simply more likely to commit crimes than others.
The second case, Farrakhan v. Washington, was decided in
favor of the defendants by the Ninth Circuit Court, which
stated that an analysis of the totality of the circumstances
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encompassing any biases in the criminal justice system must
be accounted for by the lower court. Upon remand, however, the lower court ruled in favor of the State, noting that
there were not enough factors established by the Senate to
support the plaintiffs position. The Senate Report which lists
the factors, intended to demonstrate possible ways to determine institutionalized racial inequality, however, explicitly
states that the factors are not intended to be a numerical
“point counting” device and the list is no way exhaustive
(Senate Report 29, n. 118).
The third case relevant to felon disenfranchisement
under Section 2 of the VRA was Johnson v. Florida. The case
was filed by a group of ex-felons who had completed their sentences, yet had not been able to restore their voting rights.
The 11th Circuit Court found that, despite history of racially
motivated disenfranchisement, the state’s provision was legal.
The Court noted that the law was re-affirmed in a constitutional convention after the Civil War which included both
whites and blacks in the delegation. Additionally, without a
clear statement of intent from Congress, the Court was not
persuaded that the results test of Section 2 was intended to
apply to felon disenfranchisement.
A fourth case, Baker v. Pataki, is also relevant, although
the case deals with currently incarcerated inmates who would,
theoretically, regain their voting rights upon completion of
their sentences. Baker gives the issue of felon and ex-felon
disenfranchisement some context because the 2nd Circuit
Court, which decided the case, deadlocked in 1995 – affirming the lower court’s decision in favor of the State, but generating some ideas for discussion on the issue nonetheless. The
half of the court who sided with the plaintiffs argued that
Section 2 of the VRA applies to felon disenfranchisement
provisions because Congress is granted the authority in the
15th Amendment. The other half of the court disagreed,
holding that such an application was beyond the scope of
authority of Congress.
The opinions in these cases agree that Congress both has
the authority to enact federal legislation concerning voting
qualifications, including those pertaining to felons, and that
current state provisions of these kinds might fall under the
jurisdiction of the Voting Rights Act. Though Congress
never expressly stated the intent that the VRA applied to
these statutes, many researchers maintain that the 15th
Amendment grants Congress the authority to pass federal legislation to guarantee equal political rights for minorities.
Congress having the constitutional authority to legislate
over such matters, the issue becomes whether or not such
felon disenfranchisement statutes truly result with a racially
disproportionate impact. State by state comparisons show a
dramatic increase in the incarceration rates for almost all
non-whites, the majority of those African Americans. The
Sentencing Project has estimated “the national black-towhite ratio of incarceration” at 5.6 to 1 (Mauer & King, 2007,
p. 10). In some states, the disparity is even greater, the black-
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to-white ratio reaching near 14 to 1 (Mauer & King, 2007, p.
10).
Not only does felon disenfranchisement have a racially
disproportionate effect, evidence points to racial animus
within the criminal justice system itself. Non-whites are more
likely to be imprisoned than whites, because they are less likely to be offered alternative sentencing. They are also more
likely to be prosecuted for a more serious offense, while a
white defendant charged with the same crime stands a greater
chance of being offered a plea bargain (Provine, 2007). Nonwhites also statistically endure more severe sentences than
their white counterparts (Provine, 2007).
Since the 1970s, punitive crime policies, which target
African Americans, such as laws concerning drug use and distribution, have been more than “merely an exercise in crime
fighting; it both responded to and moved the agenda on racial
equality” (Weaver, 2007, p. 230). In addition, a state’s black
population is directly correlated to the use of capital punishment; that is, the larger a state’s African American population, the more likely the death penalty is used as punishment
for certain offenses (Provine, 2007). Studies show that among
aggravating factors – those significantly increasing the penalty for the crime committed – being black and using a handgun are on par with one another (Provine, 2007).
Currently one in three black males will become disenfranchised at some point in their lifetime due to a felony conviction (Provine, 2007). African Americans constitute less
than 14% of the population; black males, a narrower subset,
constitute about half of that. If, like the rate of crime, felony
convictions were proportioned by racial identity, then
researchers would see an incarceration rate of considerably
less than 33% for African Americans. Estimates range from
15-20%, and being nearly the same for whites, it would produce a much larger absolute population of white felons
(Manza & Uggen, 2006). Though this analysis fails to
account for all relevant variables, like the difference in age
distribution between races, it indicates the law enforcement
and the judicial system are disproportionately more inclined
to target people of color, both in crime policy and criminal
sentencing.
There are 5.3 million people disenfranchised under state
felon disenfranchisement statutes in the U.S. (Manza &
Uggen, 2006, p. 94). Not only is the racial proportion of
those disenfranchised severely misrepresentative of the
American population, it is also damaging to minority voting
blocs, one of which is African Americans. Over the past 25
years, blacks have consistently voted for Democratic candidates 9 out of 10 times (Persons, 1997, p. 123). Disregarding
race, felons and ex-felons (if they were allowed to vote) would
vote in favor of Democratic candidates, with an average of
70% preferring these candidates since the mid-1970s (Uggen
& Manza, 2006, p. 190). This would have affected the outcome of the 2000 Presidential election definitively, and given
a simple majority to the Democratic party “in every presiden-
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tial and senatorial election from 1972 to 2000” (Manza &
Uggen, 2006, p. 191).
Proponents contend that states do have legitimate reasoning for the continuation of FD practices. However, such
arguments, including those of retribution, rehabilitation, and
deterrence, have little empirical support. The anecdotal evidence documented by so many researchers over the past few
decades (including contemporary researchers Manza and
Uggen) indicates that disenfranchisement policies simply
reiterate to former offenders that society holds them in disregard; that they are second class citizens. The sheer disparate
impact on minorities warrants a thorough analysis of these
practices. Having yet to achieve full political equality for all,
policy makers in the United States must further level the
playing ground for U.S. citizens.
Ultimately, the arguments favoring the continuation of
current disenfranchisement regimes are empty when compared to the 1 in 40 age appropriate adults kept from voting.
Little can be said to rationalize the archaic provisions responsible. Historically, it is evident that state provisions were
formed with racial biases, keeping particular demographics
out of the polls. There is in fact no reasonable method by
which to legitimize FD as a state’s interest.
HISTORY
The collective history of minorities in the United States is
one of marginalization in social, economic and political
spheres. Both those who immigrated to this country with
hopes of a better life, and those brought involuntarily, destined for lives of servitude, experienced difficulty in gaining
equal rights of U.S. citizenship. Until 1850, only propertyholding (white and usually literate) men voted. Women,
racial and language minorities, and men from the lower economic classes were not allowed to exercise their political
voice through the staple of democracy – voting. Those captured in Africa and brought to the Western hemisphere as
slave labor had little chance for basic human rights and no
chance for political rights.
Those setting the qualifications for voting early in U.S.
history made little effort to justify the exclusion of blacks from
the U.S. political process. Higginbotham (2001) has identified what he terms the “Ten Precepts of American Slavery
Jurisprudence” that “formed the logical and precedential
foundation for the American slavery culture,” and which continues to provide a platform for the unjust marginalization of
blacks today. These include the ideas that blacks are inferior,
that slaves are mere property to be disposed of at their owner’s
will, the minimization of the number of free blacks, and the
denial of religious freedom. Lasting effects continue and can
be seen emanating from the other “universalities”: there
should be no recognition of the rights of black families, education should be denied to blacks, while racial purity maintained, and all blacks should be kept powerless in all aspects
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of life, including civil liberties or the ability to resist at (lastly) any cost and “by any means possible” (Higginbotham,
2001).
Upon the Union’s victory in the Civil War, Reconstruction began with federal oversight of Constitutional
Conventions in the former Confederate states. The platform
for post-slavery disenfranchisement was built at these conventions. New means had to be devised to keep African
Americans from the polls. In Origins of the New South, C.
Vann Woodward (1951) shows the numerical effect in
Louisiana. Prior to the ratification of Louisiana’s new constitution in 1887, 130,344 African Americans were registered to
vote. It is probable that votes cast by African Americans during this time period were not reflective of their own interests,
but were manipulated by whites. However, the ratification of
this new constitution marked the decline of African
American voters to a mere 5,320; in 1904, the first
Presidential election year in which a poll tax was required,
only 1,342 blacks registered (Woodward, 1951). Subsequent
provisions ensured that no African American would be eligible to vote after 1900: educational qualifications, property
qualifications, and the grandfather clause (making eligible
only those who were allowed to vote prior to 18671 or who
were descended from someone who could vote that year,
effectively protecting poor, illiterate whites) combined with
poll taxes prevented African Americans in Louisiana from
electoral participation (Woodward, 1951).
Southern states mimicked one another in the devices
used to qualify voters, disenfranchising minorities. Carter
Glass, attending the Virginia Constitutional Convention
declared “Discrimination! Why that is precisely what we propose; that exactly is what this convention was elected for”
(Woodward, 1951, p. 333). Directly following the end of the
Civil War, many Southern states adopted felon disenfranchisement laws, which is relevant to the VRA’s analysis of the
totality of the circumstances. These include Alabama (1867),
Arkansas (1868), Florida (1868), Georgia (1868), Mississippi
(1868), Missouri (1875), North Carolina (1876), South
Carolina (1868), Tennessee (1871) and Texas (1869)
(Behrens, Uggen & Manza, 2003).
Believing blacks more likely to commit some crimes than
whites, felon disenfranchisement provisions were carefully
constructed so, the drafters believed, they, like grandfather
clauses, would bar blacks from the polls, but allow whites to
cast their votes. The man behind FD provisions for
Alabama’s 1901 Constitutional Convention, John Fielding
Burns, was clear about which crimes blacks were more apt to
commit (Hench, 1998). For instance, he reasoned that under
the constitutional provision, 60% of black voters would be
disenfranchised for “wife-beating” (Hench, 1998). Crimes
which were, in the minds of the men at the Convention, just
as likely to be committed by members of either race, like mur1
It is important to note that blacks were not permitted to vote in the
South in 1867.
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der, were not included in the felon disenfranchisement provision (Hench, 1998).
In the mid-20th century, the Civil Rights Movement
championed the dismantling of grandfather clauses, poll taxes
and other forms of race based vote denial in the United
States. Called “Jim Crow’s last Hurrah” by Virginia Hench
(1998), felon disenfranchisement outlasted other voting qualifications that had a history of racial animus and an ability to
disenfranchise minority voters.
The Voting Rights Act of 1965 has been heralded as one
of the most successful advances for the political rights of
minorities in U.S. history. Withstanding challenge by states’
rights supporters in South Carolina v. Katzenbach, the Voting
Rights Act was used in numerous cases to protect the voting
rights of minority individuals and communities (Hench,
1998). The principal reasoning was clearly articulated by
Justice Douglas in Harper v. Virginia Board of Elections in 1966:
“the right to vote is too precious, too fundamental to be so
burdened or conditioned” (Harper v. Virginia Board of
Elections, 383 U.S. 663 (1966)).
While Harper dealt the death blow to poll taxes, the
opinion made clear that voting qualifications must have a
clear and reasoned purpose, such as proof of residence and
age. Minors lack legal capacity; it is less likely they’ll comprehend the issues at hand enough to make a responsible decision. The residency requirement protects the one person –
one vote system. However, as the population of felons and
ex-felons rises in the U.S., the responsibility should belong to
the states to prove this voting disqualification necessary or
reasonable.
CASES
Interpreting the application of the Voting Rights Act and the
results test of the 1982 amendments, federal courts disagree
over the application’s legality. Section 2 of the amended
VRA states that any voting qualification must not result in a
discriminatory impact on minorities. Opponents of felon disenfranchisement argue that this includes racial disparities
among those disenfranchised due to racially disparate felony
convictions and should invalidate such provisions under the
Voting Rights Act. Others maintain that the ability to disenfranchise felons is a state’s right protected under the second
clause of the 14th Amendment. These constitutional arguments have been presented in the courts, leaving much of the
historical and contemporary contexts open to interpretation.
Four significant cases have been decided in federal court
dealing with the legality of felon disenfranchisement since
the 1982 amendment of the VRA. The decisions either narrowly upheld felon disenfranchisement statutes or dismissed
the complaints for a lack of standing. Many argue that
Supreme Court intervention is warranted (Handelsman,
2005). A fifth case Muntaqim v. Coombe, lacks any real significance because the plaintiff was never a voter-eligible resi-
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dent in the state in which he was later incarcerated; though
the majority of judges in the case noted that the VRA may
apply to felon disenfranchisement statutes.
The Sixth Circuit U.S. Court of Appeal decided the case
of Wesley v. Collins (hereafter known as Wesley) in 1986.
Charles Wesley, an African American in Tennessee, was convicted “of being an accessory after the fact to the crime of larceny and received a suspended sentence” (791 F.2d 1255).
Subsequent to his guilty plea, Wesley was disenfranchised
under a Tennessee state law which mandates that anyone
convicted of a felony in any state or federal court cannot vote
until being pardoned or upon restoration of full civil rights as
permitted by state law, making Tennessee one of fourteen
states to disenfranchise both ex-felons and felons.
Attorneys for Wesley argued that minority ex-felons were
victims of both vote denial and vote dilution, both illegal
under the amended VRA, as a result of the disenfranchisement policies in Tennessee. In addition, they argued that the
law violated the 14th Amendment’s Equal Protection Clause.
The State argued that there was a legitimate and compelling
reason for the disenfranchisement provision. The Court concluded that the provision was not the result of racial animus;
the reason for disparity was that more minorities than whites
commit serious crimes, “the disproportionate impact suffered
by black Tennesseeans does not ‘result’ from the State’s qualification of the right to vote on account of race and color and
thus the Tennessee Act does not violate the Voting Rights
Act” (791 F.2d 1255). The Equal Protection Clause was also
not violated by the statute, because Wesley could not prove
intent to discriminate.
In a second case, Baker v. Pataki, argued en banc in the
U.S. Second District Court of Appeals in December 1995,
felons of minority race or ethnicity alleged that New York’s
felon disenfranchisement laws “disproportionately deprived
African-Americans and Hispanics of the right to vote, resulting in a violation of section 2 of the VRA” (Handelsman,
2005, p. 1913).
New York’s felon disenfranchisement provision applies
only to “those serving felony sentences, including prison
terms, probation or parole” according to the Ford Foundation
(2004, p. 4). Baker’s argument included two assertions: that
felon disenfranchisement in New York had a racially disparate
impact, and that New York had a racially bias criminal justice
system. Baker noted that while “African-American and
Hispanics comprise approximately 22% of the New York state
population” the groups constitute 82% of the state’s prison
population (Handelsman, 2005, p. 1913). According to
Baker, the felon disenfranchisement law violated the VRA
based on the results test.
The second assertion made by Baker was based on a study
that “revealed that there was a racial disparity in conviction
rates and sentence types” in the New York’s court system
(Handelsman, 2005, p. 1913). This argument sought to
establish discriminatory intent by demonstrating that felon
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disenfranchisement provisions, along with discriminatory
patterns in sentencing, had placed disproportionate numbers
of minorities behind bars, stripping them of the right to vote.
As noted in Wesley, discriminatory intent constitutes a violation of the Equal Protection Clause of the 14th Amendment.
The District Court held that it was not the appellants’
race that deprived them of the right to vote, it was their decisions to commit felony crimes. The court found unconvincing
the study showing the racial bias in conviction and sentencing in New York. Deciding that the study could not prove
whether the system was biased or if simply more minorities
were caught and charged for criminal acts, the 2nd Circuit
Court of Appeals deadlocked on the issue, affirming the lower
court’s decision.
Evenly divided, half the court found the application of
section 2 of the VRA to felon disenfranchisement went
beyond the scope of the 14th and 15th Amendments. They
found that the plaintiffs had failed to state a claim “[b]ecause
it is not unmistakably clear that, in amending § 1973 in 1982
to incorporate the ‘results’ test, Congress intended that the
test be applicable to felon disenfranchisement statutes” (85
F.3d 919). This is an example of the plain statement rule,
requiring that Congress’ intent should be clearly recognizable,
leaving little or no room to interpretation.
The remaining members of the 2nd Circuit Court of
Appeals argued that “the Supreme Court has already decided
that section 2 of the Voting Rights Act is not subject to the
plain statement rule” (85 F.3d 919). These judges also contended that the results test of section 2 of the VRA “is a valid
exercise of Congressional power, at least in some, though not
necessarily all, circumstances” (85 F.3d 919). Using the basis
that this application of the VRA is permissible and Congress’
authority legitimate, the judges who supported the appellants’
claims expressed regretfully that, from their interpretation,
the second clause of the 14th amendment (which they
believed was intended to ensure enfranchisement of previously enslaved blacks) was now being used to disproportionately
dilute the voting strength of minority voters.
Farrakhan v. Washington (hereafter Farrakhan I), decided
in 2003 in the Ninth Circuit U.S. Court of Appeals distanced
itself ever so slightly from the Wesley opinion. Under
Washington state law, even some who have completed their
sentences may remain disenfranchised. This policy is applicable to ex-felons “who have been convicted of violent or
multiple offenses” (Ford Foundation Report, 2004, p. 4).
Released after serving an adequate portion of their sentences,
ex-felons in Washington, regardless of the amount or type of
offenses, are theoretically rehabilitated and ready for re-integration in the community.
The Farrakhan plaintiffs contested their disenfranchisement under section 2 of the VRA as amended in 1982
“because the criminal justice system was biased against
minorities, causing a disproportionate minority representation among those being disenfranchised” (338 F.3d 1009).
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The District Court found that felon disenfranchisement was
not the result of racism, but more likely a result of discrimination in Washington’s criminal justice system. The Court
also stated that the appellants had no standing by failing to
show their eligibility to regain voting rights.
While the 9th Circuit agreed with the lower court that
the appellants lacked standing, the case was remanded for further proceedings regarding the claim of racial bias. The previous standard had not been to look at a voter qualification
alone, but to analyze the totality of the circumstances.
Totality of the circumstances, a doctrine of analysis named in
§2 of the VRA and defined in Gingles v. Edmisten, inquires
about the “interaction of the challenged legislation with
those historical, social, and political factors” that relate within the jurisdiction, including the inherent biases asserted to
exist in the criminal justice system (791 F.2d 1255).
The 9th Circuit panel’s majority wrote that “[s]ection 2
plainly provides that a voting practice or procedure violates
the VRA when an appellant is able to show, based on the
totality of the circumstances, that the challenged voting practice results in discrimination on account of race” (338 F.3d
1009). The State argued that Congress did not intend for section 2 to be applied to felon disenfranchisement statutes,
made evident from its lack of mention of typical factors identified by Congress. Also irrelevant was any alleged racial bias
in the criminal justice system because it was unidentified by
Congress in its renewal and amendment of the VRA in 1982.
The 9th Circuit found, contrary to the interpretation of the
district court, that “Congress did not intend the listed factors
to be exhaustive,” and that “simply because Congress did not
specifically identify racial bias in the criminal justice system
as a relevant factor in identifying a Section 2 violation does
not mean that it should be excluded from a totality of the circumstances analysis” (338 F.3d 1009).
Judge Kozinski, dissenting, noted the courts are deeply
divided on the issue, and declared“[t]his is a very dark day for
the Voting Rights Act” because “[i]n adopting a constitutionally questionable interpretation of the Act, the panel lays the
groundwork for the dismantling of the most important piece
of civil rights legislation since Reconstruction” (Handelsman,
2005, p. 1916). Kozinski argued that any application of the
Voting Rights Act to states’ FD practices would seriously
intrude upon congressional power. States, he argued, have a
constitutional right to disenfranchise those convicted of
crimes under the second section of the 14th Amendment.
That provision explicitly excludes any subsequent legislation
from overruling it, unless Congress has clearly declared that
they intended to raise a constitutional question, which it has
never done.
Upon remand, Farrakhan became Farrakhan v. Gregoire
(Farrakhan II) and was retried in the U.S. District Court for
Eastern Washington. Plaintiffs cited numerous expert reports
documenting the racial disparities in every stage in the criminal justice system. According to expert reports submitted by
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both sides in the case, minorities are more likely to have
charges filed against them after arrest, more likely to be
searched by police, and are far more likely to be convicted of
selling hard-core narcotics, even though most dealers in
Washington are white (No. CV-96-076-RHW, Document
234). Whites charged with crimes of any sort in Washington
are more likely to be released on their own recognizance and
are more likely to be given alternative sentences, often preventing a felony charge from becoming a part of their records
if they complete mandatory requirements such as counseling
or community service (No. CV-96-076-RHW, Document
234). “[E]ven after legally relevant characteristics, such as
offense seriousness, offenders’ criminal histories, and weapons
charges, are taken into account” substantial disparities remain
between how white and minority offenders are treated (No.
CV-96-076-RHW, Document 234).
Chief Justice Robert H. Whaley of the U.S. District
Court did not interpret the evidence in the same way.
Despite the Plaintiffs argument that Allen v. State Board of
Elections found that application of the VRA should be done
so that it offers “the broadest possible scope in combating
racial discrimination,” the District Court’s are relying on the
Senate Factors, created in conjunction with the 1982 amendments, in greater weight favoring of the State (393 U.S. 544,
567). The plaintiffs contended that there is no magic number of factors that have to be proven to win a claim, nor is the
list exhaustive, so that there may be a section 2 claim despite
its identifying features not being named in the Senate Factors.
Furthermore, according to the 2nd Circuit Court’s reading of
Senate Report 29, n. 118, the factors identified were not
meant to be a “mechanical ‘point counting’ device” (791 F.2d
1255). The District Court relied heavily on its opinion in
Farrakhan I, and ordered a summary judgment for the state,
saying that “[a]lthough the evidence of racial bias in
Washington’s criminal justice system is compelling, it is simply one factor in the totality of the circumstances the Court
must consider when evaluating Plaintiffs § 2 claim” and that
the totality of the circumstances, really the nine Senate
Factors, do not support the claim that “Washington’s felon
disenfranchisement law results in discrimination in its electoral process on account of race” (338 F.3d 1009).
Farrakhan I is fundamentally different from Wesley because
not only did the Court find that Congress had the authority to
create the VRA and force states to comply, but also that the
VRA could apply to felon disenfranchisement statutes. The
Farrakhan decision, similar to the dissenting opinion in Baker,
set the first precedent for a serious challenge to a felon disenfranchisement statute under the Voting Rights Act.
The fourth case, Johnson versus Governor of Florida
(Johnson), was heard by the 11th Circuit Court of Appeals in
2003 and then vacated in 2004. It differs from the first two
cases because it was filed by and on behalf of ex-felons.
Florida is one of the few states that does not automatically
restore rights to those who have completed their sentences,
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but requires that ex-offenders apply to the Governor for a
reinstatement of voting rights. The Governor may not
(though he once could) delegate the responsibility, but must
decide each case himself. The process is painstakingly slow
and an ex-offender is lucky to have his application considered, let alone have his rights restored.
The Court in Johnson, agreeing with the Baker decision,
argued that without a clear-intent statement from Congress,
the amended § 2 of the VRA could not be interpreted as
applying to felon disenfranchisement statutes (353 F.3d
1287). The majority believed that felon disenfranchisement
practices are permitted under the 14th Amendment and
wrote in Johnson “It is a long-standing rule of statutory interpretation that federal courts should not construe a statute to
create a constitutional question unless there is a clear statement from Congress endorsing this understanding” (353 F.3d
1287). Ultimately, the majority noted, felon disenfranchisement should be analyzed cautiously because it is “deeply rooted in our nation’s history” (353 F.3d 1287).
The majority’s analysis of the historical background
found that there was simply not enough reason to assume that
the felon disenfranchisement provision in Florida’s
Constitution was motivated by “racial animus” (353 F.3d
1287). Justice Kravitch, writing for the majority, argued that
the constitutional revision that took place in 1868 was conducted under federal supervision and should not be considered to have been constructed with racial bias because “a
racially mixed delegation produced a constitution granting
suffrage to men of all races” (353 F.3d 1287). However, when
the plaintiffs pointed to one of the leaders of the convention
claiming “that he had kept Florida from becoming ‘niggerized,’” Justice Kravitch argued that this most likely referred to
the legislative apportionment system and a stipulation that
allowed the state’s governor to appoint county officials (353
F.3d 1287). Judge Kravitch believed that federal oversight
and a racially mixed constitutional delegation were enough to
ensure that Florida’s felon disenfranchisement policies were
race-neutral, but couldn’t chasten the racist whims of the
majority when it came to issues of apportionment. Reasoning
such as this becomes difficult to justify and weakens a proper
analysis of totality of the circumstances.
The dissenters contended that the totality of the circumstances should have prevailed, and that, given the social and
historical context, “race bias in the criminal justice system”
which produces “a racially discriminatory effect” is very much
within the scope of the VRA (353 F.3d 1287). Judge Wilson,
who concurred in part and dissented in part, stated in his
opinion that when creating the VRA “Congress found specifically that it was impossible to predict the variety of means
that would be used to infringe on the right to vote” (353 F.3d
1287). Judge Wilson recognized another element “deeply
rooted in our nation’s history” – that of racial discrimination
and creative efforts to block minorities from exercising the
franchise (343 F.3d 1287).
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All four cases have been denied certiori by the Supreme
Court, leaving subsequent cases to be open to new interpretation. While it may seem that the issue of felon disenfranchisement and the VRA has been settled in the federal court
system, it is far from it. It may be merely coincidence that, for
the most part, decisions were in favor of the state’s disenfranchisement policies. Within each Court, the judges were split,
leaving room for doubt about whether felon disenfranchisement is excluded from § 2 of the VRA because of the 14th
Amendment.
The 14th and 15th Amendments altered the balance
between federal and state powers, and empowered Congress
to enact legislation to enforce the Civil War amendments.
While voter qualifications are still within the state’s control,
the 14th and 15th Amendments allow for federal intervention when necessary to protect the rights of minorities, which
includes the creation of legislation like the Voting Rights
Act. Despite the lack of a clear declaration of application to
FD statutes, the VRA may very well apply to such provisions.
During discussion of the design and reach of the amendment
to section 2 of the Act, the Senate recognized that it could
not possibly list all applications of the results test, but that any
application not listed should not be excluded from judicial
review under the VRA.
Case law set by the Supreme Court in Allen v. State Board
of Elections dictates that the Voting Rights Act should be
interpreted as broadly as needed to prevent racial discrimination. Thus, with the congressional record of violations and
the shift of power from the states to the federal government
to protect racial and linguistic minorities’ voting rights, there
is adequate authority for section 2 of the VRA to apply to
state felon disenfranchisement practices. In addition, Hunter
v. Richardson stated that the 14th Amendment never granted
states “unfettered discretion to disenfranchise felons” (353
F.3d 1287). These two cases lay some of the groundwork for
challenging felon disenfranchisement under section 2 of the
Voting Rights Act. There is an incontestable and disparate
racial impact from felon disenfranchisement schemes, Allen
found that the VRA results test should be interpreted to favor
protecting the electoral voice of both minority voters and
communities. Meanwhile, states retain the right to set voter
qualifications, so long as it serves legitimate interests.
The majorities in the preceding cases interpreted the
VRA narrowly, redefining the totality of the circumstances
analysis. While the Senate Report that accompanied the
1982 amendments to the VRA noted that legislation must be
analyzed to see how it interacts with other social and historical contexts, a majority of the judges in each case did not recognize the a history in the United States (and documented in
almost each state in question) of using both bold and subtle
means to disenfranchise minorities; means including felon
disenfranchisement. In Johnson, the majority opinion conceded that, while there likely were racially motivated reasons
for the inclusion of a felon disenfranchisement provision in
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the Constitution, the subsequent constitutional convention
in which it was renewed (without any documented discussion,
according to Judge Barkett) voided the necessity of looking at
the racial motivations in the past. The violence, intimidation
and creative disenfranchisement policies used to keep minority voters from the polls in Florida should have carried more
weight in the analysis of the provision, as required in section
2’s totality analysis.
The totality of the circumstances analysis should have
also included the functionality of the criminal justice systems
in each case. Plaintiffs in Farrakhan II submitted contemporary empirical evidence that suggested institutional racism in
each step of the process. The State agreed with the evidence’s
validity and the Court found the evidence “compelling,” yet
the District Court decision, upon remand from Ninth Circuit
(with direction to take into account the inherent bias in the
criminal justice system), found that this bias was only one relevant Senate Factor and noted that “[i]t is Plaintiffs’ burden
to show the Senate Factors weigh in their favor” (Farrakhan
II). Senate Report 29 explicitly says that Senate Factors are
(a) not an exhaustive list, and (b) are not intended to be used
as a counting mechanism; it doesn’t matter if there is one side
with more Factors proven or not, they are simply to help identify instances of when application of § 2 is warranted.
The majority opinions in the four cases under scrutiny
here agreed with the states that there are legitimate and compelling reasons for disenfranchising ex-felons. Only one of
these reasons is listed. One opinion, relying on John Locke’s
social contract theory, argues that, by acting feloniously, these
individuals voluntarily surrendered the civil liberties afforded
them by government z9791 F.2d 1255). This becomes a slippery slope, however, as Justice Marshall reasoned in his dissent in Richardson v. Ramirez, “[e]ven a jaywalking or traffic
conviction could conceivably lead to disenfranchisement,
since § 2 (of the 14th Amendment) does not differentiate
between felonies and misdemeanors” (418 U.S. 24). The
worry that ex-felons may vote those they believe contributed
to their incarceration out of office is neither compelling nor
legitimate. As the Supreme Court said in Carrington v. Rash,
no one can be kept from voting because of how they might
vote. The essential point in both arguments is that, without
a compelling state interest, a qualification requiring eligible
voters to have clean criminal records has little legal justification.
Divisions in the federal appellate courts have the left the
issue of VRA application to felon disenfranchisement provisions far from settled. Questions over Congress’ authority to
apply voting rights legislation to aspects traditionally seen as
within the authority of state remain unsettled. The arguments against applying the VRA are often made without
proper analysis of the totality of the circumstances. The history of marginalization of minorities, unequal sentencing
practices in criminal justice systems, and the disparate impact
of felon disenfranchisement statutes on minorities should be
analyzed together when reviewing such state statutes.
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Though courts may be wary of pursuing claims of racially discriminatory justice systems, it is unjust to those disenfranchised under such laws to refuse to consider other factors,
such as the history of the statutes.
POPULATIONS
From 1989 to 2002, the U.S. prison population more than
doubled to over 2 million people. In 2006, the Department
of Justice reported that the combined total of prison and jail
inmates in all 50 states and federal penitentiaries was
2,245,189 people (2007). As the populations of felons and
ex-felons continue to grow, electoral effects become clear.
Because of felon and ex-felon disenfranchisement policies in
the United States, 5.3 million people, or one in forty adults,
cannot currently vote (Manza & Uggen, 2006).
Incarceration rates for every demographic are on the rise in
most states, but the increase is even greater for black men and
women. Subsequently, the numbers of those who have finished their sentences but who are disenfranchised as ex-felons
is also on the rise.
Statistics supporting the idea that persons of color commit more crimes than whites are rare, and critics have well
documented evidence suggesting that institutional racism
created much of the racial disparities seen in correctional systems across the country today. The plaintiffs in Farrakhan II
cited numerous expert reports showing that, although nearly
70% of all drug dealers in Washington state are white, more
than half of those convicted for distribution of narcotics are
minorities (No. CV-96-076-RHW, Document 234). Other
evidence, including the increased statistical likelihood that a
search will occur during a routine traffic stop if the driver is
not white (controlling for all other variables), and the discriminatory treatment of non-whites in every stage of the
criminal justice system after arrest, pointed to an inherent
bias against minorities in the criminal justice system (No.
CV-96-076-RHW, Document 234). However, the District
Court found that the more immediate cause for the disenfranchisement of the plaintiffs was their decisions to commit
felonies, rather than the institutionalized racism that targets
Minorities.
The more than 100% increase in the number of inmates
in just over a decade deserves inquiry. This rapid growth in
convictions of prison and jail sentences coincides with the
start of President Reagan’s War on Drugs. Prior to the 1980’s
the primary methods for combating addiction and drug use
rested on treatment methods and efforts to drive down
demand; the political atmosphere in the late 70’s and early
80’s saw policymakers from both sides of the aisle begin to
push for more stringent drug control efforts, with a greater
emphasis on punitive instead of the rehabilitative (Provine,
2007).
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The Reagan administration encouraged the media to
focus its attention on crack to gain popular support for its
efforts, especially the $1.7 billion Drug Free America Act
(Provine, 2006). Crack was easily obtained, highly addictive,
and relatively inexpensive; meanwhile the media broadcasted
images that solidified the connection between crack and
black, inner-city neighborhoods (Provine, 2006). Increased
police attention in these neighborhoods resulted with more
severe sentences for offenders and larger budgets for drug
enforcement.
While the policies were presumed by the public to be
race-neutral, the enhancement of penalties for crack users by
Congress targeted minority groups. Crack is derived from
cocaine. A major difference between the two is that cocaine
was viewed as a drug of choice for Caucasians, while crack was
viewed as the scourge of black communities. Both substances
are equally addictive and dangerous, and one would expect a
similar range of tactics against the two: similar police efforts,
funding for programs, and sentencing.
Congress enacted enhanced penalties for crack-cocaine
possession in the 1980’s, effectively creating a 100-to-1 difference for offenders when compared to those found guilty of
possession of cocaine. Possessing five grams of crack resulted
in a mandatory minimum sentence of 5 years, while posses-
2009
sion of 500 grams of cocaine
received the same sentence. In a
1995 U.S. Sentencing Commission
report, Congress sent a clear message to law enforcement agencies to
“focus as many resources as possible
on crack arrests, including arrest
and prosecution of small-time users
and sellers” (Provine, 2006, p. 120).
The War on Drugs is undoubtedly linked to the increased prison
population. From 1980 to 2002 the
rate of incarceration jumped 12
times for drug offenders. Elizabeth
Hull writes “in 1980 one out of fifteen people in jails or prisons was
incarcerated for a drug offense; by
2002 the number was one out of
four” (2006, p. 25). However, during the same period there was a
decrease in violent crime; a decline
that has been consistent since the
early 1990’s (Manza & Uggen,
2006). Property crime has also
decreased, though not with the
same consistency as violent crimes
(Manza & Uggen, 2006). In fact,
drug use hasn’t increased in the last
decade or so, a period which has
seen twice as many felony convictions (1986 compared to 2002)
(Manza & Uggen, 2006). While crime is not increasing,
more Americans are convicted; more often those convicted
are minority men.
These policies have a racially disparate effect. Though
white offenders have always been more numerous in absolute
figures, they have also been less likely to be convicted or
given serious sentences than their minority counterparts.
The 1991 National Drug Abuse Survey estimated that, of
those who reported using crack-cocaine at some point during
their lifetime, 65% were white, 26% were African American,
and 9% were Hispanic. In 1992, there were more than 904
drug task forces across the country, all aggressively pursuing
crack busts; that same year the Sentencing Commission
reported that in 16 states every defendant prosecuted for
either possession or distribution of crack was a member of a
racial minority – not a single defendant was Caucasian
(Provine, 2006, p. 120).
Even with the creation of mandatory minimum sentences by Congress, white defendants were far more likely to
receive alternative sentences, such as drug treatment, in lieu
of jail or prison time. Barbara Meierhoefer (1992), a
researcher for the Federal Judicial Center, documented that
“In 1990 lower-scale drug offenders who were black were
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more than twice as likely as others to receive a sentence of
five or more years” and “black offenders were twenty-one percent and Latino offenders were twenty-eight percent more
likely than whites to receive a sentence of at least the minimum term” (p. 391).
The disproportionate results are far from paralleling the
general populations of the United States, even though rates of
crime commission remain constant across racial lines
(Provine, 2007). Leading researchers on the subject, Marc
Mauer and Ryan King (2007), write that “African Americans
are incarcerated at nearly six (5.6) times the rate of whites”
(p. 3). The rate is nearly double for Hispanics compared to
their white counterparts (Mauer & King, 2007).
Five states with the nation’s harshest disenfranchisement
laws – Iowa, Florida, Mississippi, Alabama and Virginia –
show racially disproportionate felon populations when compared to the states’ general populations. These states have
instituted felon disenfranchisement provisions which require
that felons be pardoned (sometimes, by the governor personally, such as in Florida) or apply to have their voting rights
restored. These application processes for vote restoration
tend to be difficult to navigate and there are few resources
available to ex-felons after they return to the community
(Manza & Uggen, 2006).
Iowa, which has a relatively small African American
population (approximately 2% of the state’s population is
black), has a total felon and ex-felon population of 121, 418
(U.S. Census Bureau, 2000). Most of these individuals,
98,311, have served their full sentences and have been integrated back into the community (U.S. Census Bureau, 2000).
Ten thousand seven hundred and fifty ex-felons currently disenfranchised are African American. So, while African
Americans constitute a marginal 2% of the population in
Iowa, they constitute almost 11% of the state’s disenfranchised ex-felon population (Manza & Uggen, 2006).
Florida, a state with notorious felon disenfranchisement
practices, dramatized through the lens of the 2000 U.S.
Presidential election, also has severe racial disparities in its
felon and ex-felon populations. In a state in which the black
population comprises less than 15%, a disproportionate 21%
of former felons are African American (Manza & Uggen,
2006).
A third state with felon disenfranchisement policies is
Mississippi, where blacks make up 36% of the population, and
61% of the ex-felon population (U.S. Census Bureau, 2000).
For each ex-felon wishing to have his franchise restored, twothirds of the legislature must be lobbied for approval.
Nearly 26% of the state population in Alabama is black
(U.S. Census Bureau, 2000), and of the over one quarter of a
million people who have been convicted of a felony, half are
black (Manza & Uggen, 2006). That is, blacks are represented in the felon and former felon populations at nearly twice
the rate of that of the general population. For those who have
completed their sentences, 48% are African American
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(Manza & Uggen, 2006). Yet, because Alabama, like the others, continues disenfranchisement even after the completion
of an individual’s sentence, these people remain voiceless in
the electoral process.
In Virginia, with similar felon disenfranchisement provisions, 19.6% of the population and 54% of the ex-felon population is African American, giving it the greatest rate of
racial disparity (Manza & Uggen, 2006).
Despite the alleged reasons for the racially disproportionate ex-felon populations in the United States, the most
important fact remains simply that they are disproportionate.
Though the prevailing opinion in the federal court system is
that a party must demonstrate that a state’s policy stems from
a racially motivated intent to prove a claim under the VRA,
there is some sentiment, both among government officials
and Americans in general, that not only is ex-felon disenfranchisement an inappropriate policy, but that the resulting
dilution of minority voting strength makes it invalid.
THE FUTURE
OF
FD POLICIES
Prior to 1982, Section 2 of the Voting Rights Act required
that those contesting a voting qualification or procedure
prove that it was created with the intent to disadvantage language, racial and/or ethnic minorities. The United States
Commission on Civil Rights detailed several of these
instances in a report to the President, President of the Senate
and Speaker of the House. The Commission argued that the
VRA, though it had made significant progress in advancing
the participation of minority voters, had yet to fulfill its goals
in their entirety. Additionally, the Commission recommended that Congress amend Section 2 of the VRA to prohibit
voting practices “that have the ‘effect’ of discriminating on
the basis of race, color, or inclusion in a minority language
group” (U.S. Commission on Civil Rights, 1981, p. 92). The
Commission recognized that intent is difficult to prove for
many claims of race based vote denial and dilution.
One such example was the passage of a bill by the Texas
State Legislature in 1975 and its subsequent submission to the
Department of Justice for preclearance under § 5 (the section
of the VRA that requires those areas with a history of discriminatory voting procedures to have any changes to voting
law approved in advance by the DOJ), which would have
completely purged the voter rolls. Citizens would then have
to re-register by a certain date or their registration would be
terminated. The U.S. Attorney General, while noting there
was no evidence that the legislation was created with a discriminatory intent but was meant to remove ineligible voters,
opposed the change, citing the possible detrimental impact
on minority groups (United States Commission on Civil
Rights, 1981). The Attorney General found that given the
history of these minority groups – the difficulty their members
had in the past trying to register to vote – the requirement to
re-register could create “voter apathy”, and given the fact that
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county officials were not planning on sending any notice by
mail of the requirement, most may not even be aware of the
change (United States Commission on Civil Rights, 1981, p.
27).
While in a few of the examples the U.S. Attorney
General was able to stave off changes based on the anticipated effect on minority voters, such as the proposed purging in
Texas, the evidence makes it clear that an intent-based claim
is ineffective in combating many instances of attempted or
actual discrimination. Often proof of intentional discrimination is impossible to acquire, though the effects are still the
same. Historical evidence showing considerable effort and
success in disenfranchising minorities has motivated officials
in the U.S. government, from the Justice Department to
Congress and the U.S. Supreme Court, to err on the side of
caution when dealing with potential threats to the political
and civil liberties guaranteed to racial, ethnic, and language
minorities by the 14th and 15th Amendments.
There are two arguments that contend that felon disenfranchisement is illegal under Section 2 of the VRA as
amended in 1982. One is vote denial, in which an individual
is denied the right to vote based on his race and color.
Policymakers and judges have often rebuffed this argument,
claiming that large numbers of minorities are disenfranchised
under such provisions because of their higher propensity to
commit crimes. Data compiled over the past several decades
does not support this claim, however, and most scholars generally agree that crime rates tend to maintain stability across
racial lines (Provine, 2006).
Vote dilution, a second possible VRA claim, which occurs
when a racial, ethnic or language minority group is disadvantaged in the process because of any “voting qualification, or prerequisite to voting, or standard, practice[,] or procedure”
imposed by the State, may work as a more effective argument
against felon disenfranchisement. African Americans vote for
Democratic candidates consistently 90% of the time, having a
significant percentage of the population disenfranchised lowers
the ability for the community as a whole to elect their candidates of choice, a right recognized by the Senate during the creation of the Voting Rights Act and something which the Act
is meant to protect (Persons, 1997, p.129).
This has been a primary concern for civil rights activists
who maintain that subtle methods of redistricting, setting voter
qualifications and other practices may seem race-neutral at face
value, but in effect take a toll on the voting rights of minority
groups. Under the logic of the VRA, it does not matter why a
qualification disenfranchises minority voters disproportionately, only that it does. Congress, in amending the VRA in 1982
to incorporate a results test, set forth a guiding principle – a
voter qualification is not acceptable if it, in any way, disadvantages a minority population disproportionately.
Establishing a vote dilution claim rests largely on a totality of the circumstances analysis, including the history of
minority disenfranchisement, the size of the minority community, and the number of those disenfranchised. The racial
2009
animus that guided many disenfranchisement policies,
including felon disenfranchisement statutes, especially in
Southern states, is one of the Senate Factors listed (though it
need not necessarily be) and would serve as a significant part
of the analysis in those states where it can be shown. Other
factors, such as the size of a minority population compared to
the size of a minority prison population, are much easier.
Crime victimization surveys could be utilized to show how
criminal activity tends to cut across racial lines. If available,
details regarding the likelihood of alternative sentencing for
whites as compared to minorities would be exceedingly relevant to a totality of the circumstances analysis.
Vote denial has proved largely unsuccessful, despite the
1982 amendment of the VRA. Andrew Shapiro (1993), writing for the Yale Law Journal, argues that a vote denial claim
could be brought by a minority based on the idea that s/he is
more likely to suffer disenfranchisement under FD provisions
than are white offenders. However, if the plaintiff has yet to
suffer a harm, the Court will likely rule that s/he lacks standing. If they have been disenfranchised, the U.S. Appellate
Court System has ruled previously, as in Wesley and Baker,
that it is not because of race that an individual’s ability to vote
has been rescinded, but because of a personal choice to commit a felony crime. While the courts in Johnson and Farrakhan
seem willing to entertain these arguments, it has yet to be
seen what the outcome will be since the vacation of the
Johnson opinion and the remand to the district court for further proceedings in Farrakhan.
NORMATIVE SECTION
Denying any person the right to vote based on a past felony
conviction that did not include voter fraud or treason is an
inappropriate punishment. Robert Dahl wrote in Democracy
and Its Critics that “Throughout the process of making binding decisions, citizens ought to have an adequate opportunity,
and an equal opportunity, for expressing their preferences as
to the final outcome” (Conway, et al., 2005, p. 87). Voting
should be an inalienable right for all citizens, including those
reintegrated into society upon sentence completion. The
arguments in favor of felon disenfranchisement fail to show
the results they claim, and public opinion does not favor felon
disenfranchisement policies, combined with racially disproportionate negates the justification of FD practices.
Proponents of felon disenfranchisement generally cite as
reasoning for the continuation of such practices: the history
of the punishment, disenfranchisement as retribution, deterrence, and disenfranchisement as a form of incapacitation and
rehabilitation. While each of these reasons has some merit,
each has problems.
Disenfranchisement as a punishment for crime is a practice with deep roots in history, “at least as far back as ancient
Greece or Rome” (Hull, 2006, p.16). Such forms of “civil
death” were common practices throughout Europe and
England, and disenfranchisement was often coupled with the
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loss of other previously held privileges, like the ability to
inherit property or enter into a contract (Hull, 2006, p. 17).
While the colonies permitted civil death for those convicted
of certain crimes, typically those deemed most morally reprehensible, the states did away with most of this practice, with
the exception of disenfranchisement (Hull, 2006).
Some states, such as Virginia, had felon disenfranchisement statutes in effect long before the Civil War; key statutes
were adopted or significantly modified after the Civil War.
Despite some politically motivated uses of felon disenfranchisement during this period in the United States, proponents point to the fact that more states have adopted similar
policies since the end of Reconstruction, indicating the usefulness of the policy in the criminal justice system. These uses
will be discussed momentarily. One of the key arguments utilizing the history of felon disenfranchisement is “if it ain’t
broke, don’t fix it.” However, as Supreme Court Justice Felix
Frankfurter noted, “people have a tendency to confuse the
familiar with the necessary” (Hull, 2006, p. 16). A particular
form of punishment’s deep seated roots in history does not
necessitate its appropriateness, usefulness, or legality.
Retribution is a second argument in favor of felon disenfranchisement. Proponents of this type of argument contend
that a punishment should fit the crime, and that felons, by
committing more serious offenses, should face more severe
punishment, of which disenfranchisement could reasonably
be a part (Manza & Uggen, 2006, p.35). This argument fails,
however, to show that society’s need for retribution for a
crime is adequate reasoning for disenfranchisement. The
principle of proportionality, a legal maxim aimed at connecting the ends with the means, demands that any intrusion on
the rights or civil liberties of any citizens must be justified by
need. Retribution does not give adequate cause to disenfranchise all felons, regardless of any other circumstances. As
researchers Jeff Manza and Christopher Uggen (2006) note
“the blanket disenfranchisement of all felons – murderers and
petty thieves alike – violates the principle of proportionality”
(p. 35). Elizabeth Hull (2006), professor of Political Science
at Rutgers, argues that the notion of retribution is not effective as a punishment that fits most crimes, but instead serves
as a way to ostracize and exclude former offenders for an indefinite period after the completion of their sentences.
Advocates of felon disenfranchisement policies also cite
the practice’s usefulness as a deterrent. While to an extent
this claim is legitimate, it is ineffective as compared to other
deterrents, and usually does not add to those deterrents.
Many former offenders who are now disenfranchised because
of their convictions value the right to vote, and wish they still
had it. It is unlikely, however, that this is a greater deterrent
than the possibility of being incarcerated again. One of the
key problems with disenfranchisement as a deterrent is that
many potential or actual offenders are unaware of such
statutes; even those working for the State in the criminal justice system or legislative branch have inaccurate information
about voting restrictions that accompany criminal convic-
18
Lauren Nicole Carpenter
tions (Manza & Uggen, 2006). Researcher Elizabeth Hull
(2006) writes “certainly states that disenfranchise ex-felons
experience no less crime or recidivism than states that do not”
(p. 44).
A fourth argument in favor of felon disenfranchisement
asserts that these policies have the ability to reduce the capacity of criminals to commit later crimes. Similar to incarceration, proponents maintain that preventing criminals from
casting ballots will prevent them from committing votingrelated offenses. This is probably true, however, voter fraud
represents only a tiny fraction of the crime committed by
recidivists in the United States. Additionally, disenfranchisement only prevents offenses with an actual ballot.
“Felons convicted of making illegal campaign contributions… would not be restrained from doing so by restricting
their rights to cast ballots on election day” (Manza & Uggen,
2006, p. 36).
Lastly, a primary argument in favor of felon disenfranchisement is that it aids in an offender’s rehabilitation (Manza
& Uggen, 2006). While disenfranchisement policies could be
utilized in a carrot-stick approach, re-enfranchisement post
conviction is rarely granted on merit or as a reward for good
behavior. Often the offender must undergo a tedious application process in order to restore his voting rights, instead of
having them automatically granted after a pre-determined
period of appropriate behavior. Furthermore, Manza and
Uggen (2006) state that “there are reasons to conclude disenfranchisement hinders rehabilitative efforts. Disenfranchisement cannot help to foster the skills and capacities that will
rehabilitate offenders and help them become law-abiding citizens” (p. 37).
Public opinion has also steered away from favoring felon
disenfranchisement practices. A study conducted by Manza,
Uggen, and Clem Brooks (2004) in Public Opinion Quarterly
shows that while Americans disapprove of enfranchising
incarcerated offenders, a majority now approves of restoring
voting rights for ex-felons, probationers, and parolees.
According to this study, a majority of Americans support
the restoration of voting rights to offenders who are no longer
incarcerated. Support varies depending on what stage of the
criminal justice system offenders are in and the types of
offenses committed. In the case of “generic ex-felons,” 80%
of Americans support re-enfranchisement (Manza, Uggen &
Brooks, 2004, p. 283). This is the highest level of support
recorded; however, 66% of Americans support the restoration
of voting rights for ex-felons previously convicted of a violent
offense. The lowest level of support for re-enfranchisement,
52%, is reserved for ex-felons convicted of a sex crime
(Manza, Uggen & Brooks, 2004).
Findings from the study indicate that 60% support voting
rights for parolees and between 60 and 68% support reenfranchisement for probationers (Manza, Uggen & Brooks,
2004). The evidence in this report shows that policies that
disenfranchising criminal offenders are contrary to general
public sentiment. State legislators should look to their indi-
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vidual constituencies to see if felon disenfranchisement policies serve the public interest. If not, legislative action should
be taken quickly and remedy the damages already done to the
electoral strength of minority communities.
Lastly, felon disenfranchisement does not constitute an
appropriate punishment for offenders who have completed
their sentences because of the racial disparity that exists in
the criminal justice system. The Voting Rights Act was
intended to protect the voting rights of minorities and the
electoral strength of minority voting blocs. While states’
rights are protected in the American federalist system, the
exercise of states’ rights has led to the disproportionate disenfranchisement of nonwhites in the U.S. that violates individual liberties protected by the 14th and 15th Amendments.
In 2002, the U.S. Supreme Court affirmed that the 1965
VRA was intended to end “racial discrimination in voting”
(Ochs, 2006, p. 81). This purpose, combined with the 1982
amendment which changed the burden of proof from proof of
intent, to the demonstration of a racially discriminatory effect
caused by voting qualification or practices, indicates
Congress’ intention to create minimal racial disparities in the
electoral process. Though States retain the right to mandate
voting qualifications, the 15th Amendment gives Congress
the ability to place restrictions on States’ abilities in this area.
Felon disenfranchisement has had a substantial impact
on the outcome of America’s elections over the last 37 years.
With a population so closely politically divided, Ochs (2006)
estimates that “the disenfranchisement of even 2 percent of
the population likely distorts the electoral process,” (p. 81).
Using inferential statistics, Manza and Uggen (2006) have
estimated that felon disenfranchisement has given the
Republican party a measurable advantage in every national
election since 1972.
According to Manza and Uggen (2006), if felon disenfranchisement practices had not been in effect in 2000, Al
Gore would have won the Presidency. In U.S. Senate elections since 1972, the most conservative estimation, puts at
least seven seats, which were won by Republicans, under
Democratic control in the absence of state ex-felon disenfranchisement practices, and it is likely that the U.S. Senate
would have been more left-leaning throughout the mid to late
nineties through the 2006 elections (Manza & Uggen, 2006).
Given Americans’ public opinion disapproval of such
policies, and the disparate impact on racial minorities, legislators have little reason to maintain felon disenfranchisement
practices. Policymakers on both a state and national level
should work to eliminate unfair voting qualifications such as
felon disenfranchisement. Not only is this a more pragmatic
and fair system for all voters, but it is also a huge step in satisfying the intent of the 14th Amendment and the Voting
Rights Act, strengthening the electoral voice of minority
communities.
2009
CONCLUSION
In the United States, a struggle has been waged by minorities
and activists to gain social and political equality for racial and
ethnic minorities, especially African Americans. One can see
through the statistical data alone that these citizens are disproportionately adversely affected by felon disenfranchisement practices. The use of felon disenfranchisement began
during Reconstruction as a reaction to federal oversight and
control of southern constitutional conventions. Such provisions are seriously destructive to the political strength of
minority communities.
The modern practice of felon disenfranchisement continues to rely on this archaic framework for its foundation,
though the practice has undergone judicial scrutiny several
times. The four cases that have been heard in the federal
courts since the VRA was amended in 1982 failed to establish
a clear legal precedent. While the 6th Circuit Court, in
Wesley v. Collins, maintained that any discriminatory impact
resulted not from the felon disenfranchisement provision
itself, but rather from an increased propensity for African
Americans to commit crimes, the other cases did not go so far
as to generalize the criminality of an entire race. In Baker v.
Pataki the 2nd Circuit Court’s split decision reaffirmed the
lower court’s decision in favor of New York State, which
decided that the Voting Rights Act could not be used to
invalidate felon disenfranchisement. The Appellate Court
agreed that states have the right to disenfranchise felons
under the 14th Amendment, and half of the judges contended that the application of the VRA’s second section went
beyond the scope of the 14th and 15th Amendments, however, the other half of the judges argued that section 2 was a
legitimate exercise of Congressional power. The dissenting,
judges wrote that it was regretful that the 14th Amendment,
which was meant to guarantee blacks’ suffrage, was now being
interpreted to dilute their voting strength.
Likewise, the 11th Circuit Court of Appeals decided in
Johnson v. Florida that the second section of the 14th
Amendment permits felon disenfranchisement statutes, and
that given the long history of its use, should not be subject to
analysis under the Voting Rights Act unless Congress directs
the court to do so. It has yet to be seen what will happen to
Johnson since the Court’s decision was vacated in 2004.
The single case in which an appellate court sided with
the convicted felons was Farrakhan v. Washington. Though
the lower court had ruled in favor of the state of Washington,
the 9th Circuit Court found that not only are felon disenfranchisement statutes well within the scope of the Voting
Rights Act, but also that Congress’ direction to the courts
when amending the Act in 1982 demands a thorough analysis of the totality of the circumstances. The 9th Circuit
argued that such an analysis would have included alleged bias
in Washington’s criminal justice system.
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BLIND V. COLORBLIND: THE INJUSTICE
OF
STATE FELON DISENFRANCHISEMENT SCHEMES
Currently, one in forty adults in the U.S. is unable to
vote due to felon disenfranchisement provisions. With over
two million people incarcerated, the number of disenfranchised will steadily increase. Law enforcement policies, the
War on Drugs, and unequal educational opportunities among
other reasons, have had a racially disparate impact on those
entering state and federal criminal justice systems. Though
the courts have viewed the demographic results of felon disenfranchisement to stem from a difference in rates of crime
commission by race, the statistical data does not unequivocally prove this. U.S. prison populations do not mirror the
general population in terms of race. The War on Drugs has
only increased the disproportionate percentages of minorities
disenfranchised under FD policies.
Dilution of minority voting power holds the greater
promise for success as an argument against felon disenfranchisement practices than the improper denial of an individual
right to vote. While vote denial considers individual
instances, vote dilution analyzes the ability of minority communities to elect representatives of their choice. Because FD
policies affect language and racial minorities at a disproportionate rate, these voting blocs have proportionally less
strength. Under the amended language of section 2 of the
Voting Rights Act, petitioners must provide evidence to show
that state FD practices negatively affect certain classes more
than others. When and where possible, petitioners should
also provide empirical data to demonstrate other racial
inequalities, such as in public education and criminal justice
systems. Those challenging FD statutes in states with histories of racially motivated policy making should include evidence establishing the institutionalization of biased lawmaking and enforcement.
Felon disenfranchisement is also questionable policy.
Public support for these practices is dwindling, and between
60 and 80 percent of Americans believes that voting rights
should be automatically restored upon completion of prison
time, even if an offender continues to be on probation or
parole. The most common arguments in favor of felon disenfranchisement fail to represent the actual results of the practice.
Supporters argue that these policies are an effective form
of retribution. However, American legal standards, relying on
the principle of proportionality, reject this notion.
Punishments including felon disenfranchisement do not
always fit the crime, and should not be used in such a broad
manner. There is no empirical evidence to support that felon
disenfranchisement fits the crime.
Because felon disenfranchisement has a lengthy history
in the United States, state and federal policy makers are less
inclined to tamper with the policies. A history of use does not
equate to appropriateness or effectiveness. Though losing the
right to vote may prevent a felon convicted of voter fraud
from further offenses, it is unlikely to prevent the millions of
offenders from recidivism of other types, especially since
20
Lauren Nicole Carpenter
many offenders are unaware that disenfranchisement is a part
of their sentences. Furthermore, arguments suggesting that
felon disenfranchisement is useful as a rehabilitation technique are also unsupported. While such practices could be
used to encourage offenders to comply with the law, no state
attempts this approach. Instead, felons and ex-felons are
often forced to navigate difficult and highly technical processes to regain their voting rights.
The racial disparity that results from felon disenfranchisement practices is enough reason for state legislatures to
reformulate criminal justice policies. The intention of the
14th Amendment and the Voting Rights Act was to protect
the voting rights of minorities. Using the 14th Amendment’s
second clause to shield felon disenfranchisement provisions
from the VRA’s jurisdiction counters Congress’ intention in
passing the Act.
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